Over the last few decades, fetal homicide laws have become the topic of fierce debate. Some argue they are necessary to protect pregnant women from violence and provide for restitution in cases of assault that result in the loss of the fetus. Others contend it is simply another means to grant the unborn personhood status and erode abortion rights. Regardless of whether one is on the pro-life or pro-choice side of the debate, the current environment is dangerous to female autonomy and will have a profound impact on women’s rights for years to come.

This analysis is organized as follows: I open with a discussion of the legislative history of fetal protection laws. Next, I explore the effects of these laws on women, and cases in which women have been deprived of personal liberty in order to protect the fetus. Finally, I evaluate the moral dilemmas surrounding these laws. In conclusion, I concede there is a legitimate need to provide protection for pregnant women, but stress that it must be done in a way that does not subvert their rights.

History of Fetal Protection Laws

According to English common law, the destruction of a fetus was not considered homicide. Relying on the “born alive rule,” feticide was not equated with murder unless the fetus was born alive and survived independently of the mother before dying of prenatal injuries.1 Although misdemeanor liability could be imposed in circumstances in which a defendant’s actions caused the death of the fetus, jurists refused to impose murder charges unless the fetus survived long enough for the cause of death to be clear.2 Prior to 20th century legislation, U.S. law mirrored this common law “born alive rule.”

In 1972, a mother and her eight-and-a-half month old fetus were killed when a car collided with a Greyhound bus. In the case that followed, Mone v. Greyhound Lines, Inc., the court held that a fetus is a person for the purposes of the state’s wrongful death statute.3 This decision was highly influential in the 1984 Commonwealth v. Cass case in which the Supreme Court of Massachusetts ruled that a viable fetus is a person under the state’s vehicular homicide statute.4 These rulings set the framework for later legislation intended to prosecute violent acts that resulted in fetal death or injury.

The first fetal homicide laws were enacted in a period of overwhelming violence against pregnant women. From 1991-1999, 31% of all pregnancy-associated injury deaths were the result of homicide.5 The Unborn Victims of Violence Act, signed into law by President George W. Bush in 2004, was intended to categorize unborn children as victims. It recognizes that when a criminal injures or kills a woman and/or her child, he has affected two lives rather than one.6 The law defines the term unborn child in utero to mean “a member of the species Homo sapiens, at any stage of development, who is carried in the womb.”7 The law also explicitly states that it does not apply to consensual abortion, any act of the mother, or any form of medical treatment.8

Currently 38 states have fetal homicide laws in place, with 23 of these applying to the earliest stages of pregnancy (including conception and fertilization).9 These laws could be considered reasonable, and even necessary, when viewed in the context of violence against pregnant women. However, these laws grant fetuses a distinct legal status, and create a potential adversarial relationship between mother and child.10 Laws in some states go further, and provide for state intervention if women engage in certain activities such as drug or alcohol abuse. In fact, women themselves are increasingly being targeted by these laws and prosecuted for harm that befalls the fetus in utero (whether intentional or not). As of 2014, only 24 of 36 states had laws that expressly exempted pregnant women from being prosecuted for causing injury to their own fetus.11

The Impact of Fetal Protection Laws on Women

A 2013 study by the National Advocates for Pregnant Women (NAPW) identified 413 criminal and civil cases involving the arrest, detention and deprivation of liberty of pregnant women between 1973 and 2005.12 New data indicates that 250 such interventions have occurred since 2005.13 In almost all the cases identified, the woman would not have been prosecuted for any crime, had she not been pregnant at the time of the violation.14 Since 1973, measures that have encouraged state actors to treat eggs, embryos and fetuses as entities separate from the mother have been used as the basis for punitive action against women all over the country (although disproportionately against women in the south, low-income women and African American women.)15 Following are five cases in which women were targeted for actions taken during their pregnancy.

Laura Pemberton, a resident of Florida, had previously delivered a baby by C-section. When she became pregnant again, she attempted to find a physician that would allow her to deliver vaginally. Unable to do so, Pemberton decided to give birth with the assistance of a midwife. On January 13, 1996, after a day of labor, she decided that she needed to go to the hospital. Upon arrival she requested only an IV so that she could return home and finish the delivery. Instead, the hospital set in motion a process used for patients who declined medically necessary treatment. A hearing was held where two doctors testified that vaginal delivery would pose a substantial risk of uterine rupture, resulting in the death of the baby. Ms. Pemberton, who had since returned home, was forced to return to the hospital against her will. Although lawyers argued on behalf of the fetus, Pemberton and her husband were not afforded legal counsel, but were “allowed to express their views.”16 The judge ordered that a caesarean section be performed. Later, when she sued for a violation of her civil rights, a court ruled that the state’s interest in preserving the life of the fetus outweighed her rights.17 She went on to give birth vaginally to three more children.

In 2010, Samantha Burton was 25 weeks pregnant and began showing signs of miscarrying. Her doctor advised that she go on bed rest, possibly until delivery, but Burton had two toddlers and a job. She planned on getting a second opinion, but the doctor asked the state to step in. She was ordered to remain at the hospital and undergo any medical treatment that her doctor, acting in the interest of the fetus, deemed necessary.18 She asked to switch hospitals, but the court denied her request. Three days later, Burton miscarried.

In 2011, Chinese immigrant Bei Bei Shuai, who was 30 weeks pregnant, attempted suicide by swallowing rat poison. The father of the baby had broken off his relationship with Shuai, who then became desperate. She survived and went to the hospital, complying with all medical staff. She then gave birth to a baby girl, who did not survive. Prior to her suicide attempt, Shuai had left a note to the father stating she was going to kill herself and take the child with her. Under Indiana law, it is a crime to knowingly or intentionally kill a viable fetus. Prosecutors used this to argue that she had intended to kill the baby. However, the molecular structure of the rat poison ingested does not easily cross the placenta, and it is not clear that this is the reason the baby died.19 In fact, Indomethacin, the medicine given to Shuai to prevent her from having contractions, can cause hemorrhages in babies.20 The forensic pathologist testified that she had done no research to determine whether the rat poison or medications killed the baby. Shuai was imprisoned for over a year until the charges were dropped and she plead guilty to criminal recklessness.

In 2013, Alicia Beltran, 28, went in for a prenatal checkup and revealed to a health-care provider that she previously had a drug addiction to the painkiller Percocet. The prior fall, she willed herself off the drug. She then obtained Suboxone, a medicine that blocks opiates and is often used in pregnancy, which she stopped taking three days before her appointment. A urine test found traces of Suboxone, but no other opiates, and three days later another test came back completely clean. Two weeks later, a social worker visited Beltran’s home and demanded that she either restart Suboxone treatment or face a court order to do so. On July 18, she was taken into custody under a 1998 Wisconsin law that allows child-welfare authorities to forcibly confine a pregnant woman who uses drugs or alcohol to a severe degree and refuses treatment (Minnesota, South Dakota and Oklahoma have similar laws in place).21 Her fetus was appointed a legal guardian, although her pleas for a lawyer were ignored. She spent 78-days at a drug treatment center, losing her job in the process.

The most extreme case yet involved immigrant Purvi Patel. In the summer of 2014, Patel went to a hospital emergency room and said that she had a miscarriage. When authorities inquired where the fetus was, she replied that she had put the body in a bag and left it in the dumpster. She stated that the baby was stillborn and, although she had tried to revive it, she was unsuccessful. They were able to recover the body, and later found text messages on Patel’s phone in which she discussed ordering and taking abortion pills from Hong Kong (no sign of these drugs was found in either her system or that of the fetus)22. Patel was charged with feticide and felony child neglect. The pathologist who testified for the defense held that the baby was stillborn, and only 23 or 24 weeks old. The pathologist for the prosecution, however, testified that the fetus was 25 or 30 weeks old. His report stated that the fetus was born alive and relied partially on a lung test (dating back from the 17th century) that has largely been discredited by science. The test works by placing the fetus’s lungs in water; if they float the baby drew a breath, and if they sink the baby died before birth. In Patel’s case, the lungs floated. Yet if she did try to perform CPR on the fetus as she said she did, air could have potentially entered the lungs, thus causing them to float.23 Other explanations include the presence of gases from decomposition, or chest pressure from vaginal delivery.24 The prosecutor, Ken Cotter, said that under Indiana law a person could be guilty of feticide for even attempting to end a pregnancy, even if the fetus survives.25 Women have previously been charged with other crimes for taking abortion pills without a prescription, but this is the first case in which the charge was one of feticide26. Patel was sentenced to 20 years in prison. In August of 2016, an appeals court vacated the charges and found that Patel should be resentenced on a lower-level child neglect charge27. This carries a maximum three-year sentence.

These five cases represent only a small portion of the hundreds involving the deprivation of liberty of pregnant women. Of the 413 cases identified by NAPW, 56% originated in the South, followed by the Midwest at 22%.28 The cases occurred in every state with the exception of Delaware, Maine, Rhode Island, Vermont, and West Virginia.29 South Carolina had the largest number of cases (93), followed by Florida (56) and Missouri (29).30 There was also a disproportionate effect on women of low socioeconomic status and color. 71% in the study qualified for indigent defense, and 59% were women of color.31

There is great ambiguity when applying these laws to women that experience miscarriages. Approximately 50% of all fertilized eggs will die and be spontaneously aborted by a woman’s body before the woman knows she is pregnant.32 For women who know they are pregnant, the miscarriage rate is between 15-20%, most of which occur during the first 7 weeks of pregnancy.33 Most miscarriages are the result of chromosomal defects that make it impossible for the baby to develop. There are numerous other possible causes of miscarriage,34 and in reality, it can be difficult for medical professionals to determine with certainty what caused it.35 It is dangerous to criminalize a process that women have little to no control over. As cases such as the aforementioned increase, criminalization could potentially prevent women from seeking necessary medical help for fear of being prosecuted. Not only is this dangerous for the woman, but it could also affect fetal health as well. Furthermore, it could lead to excess intervention in pregnant women’s day to day lives for the purposes of ensuring that the fetus’s best interests are served.

Moral and Ethical Dilemmas

The primary difficulty that arises from fetal homicide laws lies in the categorization of the fetus as a legal entity that is separate from the mother. In effect, the fetus is granted personhood for the purpose of prosecuting violent crimes. This is dangerous, because the mother no longer maintains the same set of rights that she did prior to conceiving. For women to operate as equal members in society, their personal liberty cannot be determined by their childbearing status. A potential person, who is not protected by the Constitution, cannot be granted legal rights that supersede those of an already existing person. The protection and rights that are enjoyed by legal persons (due process, voting, and equal protection to name a few) cannot be exercised by a fetus. Therefore, it is unacceptable that a woman’s rights become secondary to those of her unborn child. If personhood status is granted to fetuses (even if only for the purpose of prosecuting violent crimes), women must relinquish their personal liberty for the duration of their pregnancy. This essentially creates a second-class citizenry whose individual rights are entirely dependent on whether their womb is vacant or occupied.

Furthermore, the language in these laws creates an inconsistency with a woman’s legal right to an abortion. As maintained by Roe, the right to privacy in the Fourteenth Amendment includes a woman’s decision whether or not to terminate her pregnancy.36 Several of these fetal homicide measures implicitly grant the fetus personhood, creating a contradiction between a woman’s right to abortion and a fetal right to life. To say that a woman has a legal right to terminate her pregnancy if she chooses but yet the death of the same fetus is murder when caused by someone else (or herself) is morally problematic. Although it is a travesty for a woman to lose a fetus that she intended to bring to term due to the recklessness or violence of another, this issue is not remedied by charging the offender with murder (which implies that the deceased is a person who possesses the right to life). Either the fetus is a person legally protected from death whether by assault or abortion, or it is a potential person that does not yet possess this right in any capacity.

When fetal homicide laws were first enacted, critics spoke out against the legislation, arguing that it would be used to prosecute pregnant women themselves. Proponents scoffed, and accused the opposition of employing slippery slope arguments. However, it has become increasingly evident that these laws are not meant to protect women, and in some cases are being used to erode the availability of abortion. In 2012, Rep. Mark Waller of Colorado introduced HB11-1256 concerning crimes against an unborn child. However, Colorado Right to Life and National Right to Life opposed the measure because of one specific line:

18-3.5-109 “Nothing in this article 3.5 shall be construed to confer the status of ‘person’ upon a human embryo, fetus or unborn child at any stage of development prior to live birth.”37 It is also interesting to note that this bill specifically excluded the termination of a pregnancy to which the woman consented, and also held that a woman could not be prosecuted for any act with regard to her own pregnancy. If the issue at stake truly was the protection of pregnant women, then such language would not be an issue.

The desire to punish women for fetal abuse or death arises from an inherent belief that it is a woman's responsibility to provide an ideal uterine environment for offspring. Women that fail to properly fulfill this duty are viewed as deviants that need to be punished in order to maintain societal order. Granting the fetus any degree of personhood detracts from the woman’s autonomy and creates an unequal distribution of burdens between men and women. By default, this inequality extends to all women capable of bearing children because at any point they too could become pregnant and lose their right to bodily autonomy. Since men biologically cannot reproduce, they enjoy the privilege of possessing a full set of rights that is not dependent on the existence of another. For women to operate as equal members of society, they must also possess this same privilege.

Conclusion

The dilemma that must be solved then, is how to provide protection to pregnant women without violating their individual rights. Since pregnant women are at an increased risk of violence and homicide, it is crucial to make such crimes as unattractive as possible. One potential solution is to craft laws that are specific to assault on pregnant women. Such legislation, however, would have to classify the woman as the only victim and avoid any language that could be construed to confer legal rights or personhood on the fetus. Protecting pregnant women is a pressing moral issue because not only is her life at stake, but also a potential life which is of great value to her. Yet we must take care to do it in a way that affirms the basic human rights of women and does not threaten their participation as equal members of society.

Munaweera, Nayomi. “Caught Between the Misogynies of India and Indiana: The Tragic Case of Purvi Patel.” The Huffington Post, April 9 2015, accessed April 12 2015, http://www.huffingtonpost.com/nayomi-munaweera/caught-between-the-misogynies-of-india-and-indiana_b_7021766.html.

Bazelon, Emily. “Purvi Patel Could Be Just The Beginning.” New York Times, April 1 2015, accessed April 12 2015, http://www.nytimes.com/2015/04/01/magazine/purvi-patel-could-be-just-the-beginning.html.

Munaweera, Nayomi. “Caught Between the Misogynies of India and Indiana: The Tragic Case of Purvi Patel.” The Huffington Post, April 9 2015, accessed April 12 2015, http://www.huffingtonpost.com/nayomi-munaweera/caught-between-the-misogynies-of-india-and-indiana_b_7021766.html.

Bazelon, Emily. “Purvi Patel Could Be Just The Beginning.” New York Times, April 1 2015, accessed April 12 2015, http://www.nytimes.com/2015/04/01/magazine/purvi-patel-could-be-just-the-beginning.html.

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